ORDER
D.P. Sood, J.
1. This order shall dispose of all the criminal revision petitions, seven in number, as a common question of law and fact has arisen. Also, petitioner in all the cases is the same.
2. The facts, in brief, are that in a criminal case State v. M. S. Khan and Ors., under Section 452 of the Penal Code, S/ Shri M. S. Khan, Sat Dev Singh, America Prashad, Chhaju Chauhan, Mehesh Prashad, Moti Lal and Harinder Chauhan were facing trial in the Court of Sub-Divisional Judicial Magistrate, Kandaghat, District Solan. The petitioner, Narata Ram had stood surety for each one of the seven accused and had executed the surety bond, undertaking that he would see that the accused appear on every date of hearing in the case in the Court and in case any default was made in that respect, he would be bound to pay Rs. 5000/- (Rupees five thousands) as penalty. All the seven accused have absconded and are not being served.
3. A notice was, accordingly issued to the petitioner for the production of all the accused persons on 25th May, 1992. He showed his inability to do so. The surety bond to the tune of Rs. 2,000/- (Rupees two: thousands) of the petitioner in respect of each of the seven accused, were forfeited to the State. Seven show-cause notices were issued under Section 446 of the Code of Criminal Procedure. The petitioner did not. file reply. The petitioner again could not produce either of the accused-persons despite opportunities having been given to him to produce them. The: learned Magistrate, vide his order dated July 1, 1992, imposed penalty of Rs. 2000/-upon the petitioner in respect of each one of the surety bonds.
4. The petitioner unsuccessfully assailed the aforesaid order of the learned Magistrate in the Court of learned Sessions Judge. The appellate Court dismissed the appeals and affirmed the order passed by the trial Court in respect of each one of the accused persons. Feeling aggrieved with the impugned order dated 26th August, 1992, the petitioner has approached this Court, for seeking appropriate relief.
5. I have heard Shri R. S. Parmar, learned Counsel for the petitioner at length and also carefully examined the record.
6. The fact that surety bond in the sum of Rs. 5000/- in respect of each one of the accused persons was executed by the petitioner and that he had undertaken to produce the accused persons before the Court and the fact of their failure to appear on any one of the dates, fixed for hearing is not disputed. Also, there is no controversy that the responsibility of surety arises from the execution of the surety bond by him and it is not contingent upon execution of a personal bond by the accused. Thus, the forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties. [See: Ram Lal v. State of U.P., 1980 Cri LJ 826: (AIR 1979 SC 1498)]. Perusal of Section 446 of the Code of Criminal Procedure contemplates two stages. The first stage is for the Court to satisfy itself that bond has been forfeited. The second stage relates to the realisation of the forfeited amount of the bond. For this purpose, it has to give him notice either to pay the penalty or to show cause why it should not be paid. It is imperative to note that if there are sufficient circumstances before the Court, on the basis of which it can accept or reject the cause shown, it need not take any evidence.
7. It is also settled law that a notice to the surety cannot be issued, unless the order of forfeiture is passed. Thereafter, the Court has to consider the grounds made out by the surety in support of his case and after considering the case, on merits, if the Court is dissatisfied with the reasons shown, an order has to be made for the realisation of the penalty. I am supported in my view by the observations made in the case of Dhanvir v. State, 1975 Cri LJ 1347 (Him Pra).
8. In the instant case, a show-cause notice was issued to the petitioner on 25th May, 1992, pursuant to the order passed by the Sub-Divisional Judicial Magistrate. Close examination of the said order shows that none of the accused could be served for want of correct address nor either of them was otherwise present and, therefore, prosecution was ordered to furnish correct address of the accused, within seven days and get it served for their appearance on 1st July, 1992 through non-bailable warrants. It further shows that notice to Ashok Kumar, Advocate, who identified the personal bonds of the accused, was also issued. Further, this order discloses that the petitioner showed his inability to produce either of the accused persons and this led to the order directing the forfeiture of the bonds by initiating proceedings under Section 446 of the Code of Criminal Procedure separately. The Court below further directed the issuance of show-cause notice to the petitioner as to why the amount under the bonds be not forfeited to the State of Himachal Pradesh. Lastly, this order also shows that the petitioner was afforded another opportunity to produce the accused persons on 1st July, 1992. It was on the next date — 1st July, 1992 that the final order imposing part penalty of Rs. 2000/ – in case of each surety bond was passed. It would be pertinent to note that no fresh order forfeiting the bonds of the petitioner in respect of each surety bond was passed, nor any fresh show-cause notice was issued on 1st July, 1992, pursuant to the petitioner having expressed his inability to produce either of the accused persons in the Court.
9. Question is whether a surety bond can be ordered to be forfeited simultaneously alongwith an opportunity having been afforded to the surety to produce the accused in the Court ? The answer is in the negative.
10. The Scheme of Section 446 of the Code of Criminal Procedure envisages two stages, as indicated above. No doubt, accused did not appear nor they could be produced by the petitioner and non-bailable warrants had been issued for their appearance on 1st July, 1992, the Court below had also afforded an opportunity to the petitioner to produce the accused on 1st July, 1992. Had this last opportunity to produce the accused been afforded, the portion of the order dated 25th May, 1992, directing the forfeiture of the amount under the bonds was legal and valid and for the reasons stated above, the Court could be deemed to have satisfied regarding the existence of reasonable grounds for directing the forfeiture of the bond. Here, a composite order was passed. The petitioner could have produced the accused on 1st July, 1992 and had he complied with the order to this effect, the circumstances would not have attracted the issuance of order forfeiting the bonds. Thus, in such circumstances, the Court cannot be deemed to have satisfied itself as to the existence of grounds for directing the issuance of forfeiture of the bonds on 25th May, 1992. In other words, the trial Court committed an illegality by exercising jurisdiction improperly, which had also not been noticed by the appellate Court.
11. Even otherwise the perusal of the show-cause notice issued to the petitioner shows that it is not in Form No. 48 of Schedule II of the Code of Criminal Procedure. The notice does not indicate whether the accused had failed to appear in terms of the surety bond, indicating that surety had bound himself for regular appearance of the accused in the Court in relation to the cases concerned and further that surety had bound himself in default thereof to forfeit the amount of the bond to the Government nor it discloses that the accused had failed to appear before the Court below and by reason thereof, petitioner had forfeited the bond amount. The show cause notice is in a typed form. Even the contents thereof does not depict the requisites of the prescribed show cause notice in Form No. 48. A mechanical process had been adopted by the Court below in the issuance of this notice to the petitioner.
12. In this view of the matter too, the show-cause notice so issued, cannot be deemed to be a legal and valid show-cause notice for taking further action in proceedings under Section 446 of the Code of Criminal Procedure.
13. Learned counsel has also submitted that no opportunity of being heard was afforded to the petitioner to the show-cause notice, I have already observed that no legal and valid notice was served. However, in the oridinary course, the rule of natural justice requires that before any adverse order is passed, the affected party should be given an opportunity of being heard.
14. In the instant case, the order dated 25th May, 1992, passed by the learned Sub-Divisional Judicial Magistrate, shows that the accused had indicated his inability to produce the accused. No separate statement to this effect has been recorded. Presumption of truth attaches to the order passed by the trial Court. I am not in agreement with this statement of the learned Counsel for the petitioner.
15. Taking the over-all facts into consideration, the revision entails acceptance. The impugned orders, passed in all the criminal revision petitions, referred to above, are set aside.
16. The amount of penalty, if deposited, is ordered to be refunded in respect of each accused.
17. Let a copy of this order be placed on each one of the connected files.
18. At this stage, the learned Counsel for the petitioner states that he would be producing the accused persons before the trial Court in case a longer date is given. While remitting the case, the petitioner is also directed to produce the accused persons on July 9, 1993. Let records of the lower courts be sent forthwith by the Registry. All the revision petitions stand disposed of.